The JSC: It’s not all bad and here’s why

When faced with a crisis or awkward questions about their competence or their ability to deliver on their election promises, governments often look first to fix the blame before fixing the problem. In a Constitutional democracy with a supreme constitution, there must be immense temptation on the part of members of the government to fix blame for any governmental shortcomings or broader problems in society on the judiciary or on the Constitution. Although South Africa’s Judicial Service Commission (JSC) gets a bad rap in some quarters, some of the criticism of the JSC is misplaced. Here is why.

In states with relatively backward constitutional arrangements – as, for example, in the United Kingdom – the reflex of politicians to blame unelected judges, appointed in a bureaucratic process without the direct involvement of politician, has been on display in recent years.

UK Prime Minister David Cameron recently proposed a scrapping of the Human Rights Act, which allows UK judges to interpret and apply the European Convention of Human rights (but not to declare invalid Acts of Parliament). Commenting on a decision of the European Court of Human Rights, Cameron moaned that the thought of giving prisoners the right to vote makes him feel “physically sick”. Similarly, Theresa May, the Home Secretary, recently mounted a provocative attack on some judges for being “on the side of foreign criminals” when they interpreted the European Convention on Human Rights in British courts.

In a functioning constitutional democracy like South Africa (which, unlike Britain, has a written and supreme Constitution) there may be more reason for some politicians and voters to blame the judiciary for many of failures of the government of the day. It is easier to blame judges than to actually address often systemic and deep-rooted problems.

In the case of South Africa, given our Apartheid past, these systemic problems are arguably more acute and more difficult to deal with than in most other constitutional democracies. This means judges would be particularly vulnerable to attack by politicians who either lack the political will to address the problems head-on (which might require them to make political choices unpopular with some political allies) or who are sometimes overwhelmed by the structural nature of the problems and the lack of the state’s capacity to deal with these problems expeditiously and effectively.

It is against this background that the debate about the South African judiciary, the appointment of judges and the role of the JSC in the transformation of the judiciary occur. It is my contention, and I know this is not uncontroversial, that an extraordinary amount of nonsense is spoken and written about the role of the JSC in the appointment of judges in South Africa.

Much of the confusion can be blamed on the mistaken understanding of the exact nature of the function performed by the JSC when it appoints judges and the failure to appreciate the political “cover” provided for judges by the JSC. Some critics of the JSC appear to believe that any political influence on its work represents a fundamental attack on the independence and impartiality of the judiciary. On the other hand, some members of the JSC seem to labour under the misconception that any criticism of the JSC is illegitimate.

The truth lies somewhere between these two extreme positions.

If we acknowledge, as we must, that judges in a constitutional democracy make decisions with potentially far-reaching political consequences and that the values, beliefs and political views of judges play some role in how they will decide some of the more difficult and contentious cases, we cannot avoid the fact that being a judge is not an entirely apolitical activity.

Of course, judges may not be seen to choose sides in partisan party political disputes and must interpret the Constitution in accordance with its text and the precedent of the Constitutional Court. But this still leaves them with a wide discretion in many difficult cases and this discretion will be exercised partly with reference to their judicial philosophy, world view, experience and ideological commitments. It would therefore be naïve to pretend that politics – with a small “p” – does not play a role in constitutional adjudication.

There will always be a tension between the inherently political nature of constitutional interpretation and adjudication, on the one hand, and the need to provide cogent, well-reasoned and persuasive legal arguments for a chosen interpretation based on what the text of the Constitution actually states and what the judicial precedent dictates. Judges cannot avoid this tension. Wise judges learn to manage this tension by trying to be steadfast and principled and to hand down judgments that are consistent with their own judicial philosophy – regardless of who the litigants before the judge might be.

Although judges can never be absolutely “objective”, they have a duty to treat litigants in a fair and impartial manner, to give them a fair hearing and to engage seriously and honestly with the applicable legal text(s) as well as the set of precedents developed by other courts over many decades. For the interpretation of a legal provision by a judge to be legally acceptable and legitimate in the eyes of lawyers and other informed bystanders, it is important that judges appear to interpret the law in a manner not based on their narrow party political affiliations or based on their animosity towards a particular litigant.

Given this reality, I am always surprised that in debates about the appointment of judges in South Africa, so little is made of the political, economic and social views of judges and the extent to which judges embody the progressive spirit of the transformative constitutionalism.

Instead, newspapers and many commentators often natter on about whether a specific white male candidate was appointed, seldom asking whether that white male candidate (or, it must be said, the candidate who was selected above their preferred candidate) was not perhaps a political reactionary with strong sympathies towards big business, beholden to a private school boy network of corporate lawyers with sympathies to large financial institutions. We seldom hear questions asked about whether an appointee believes that the law should try to protect people – especially the vulnerable and the poor – from the injustices visited upon them by large corporations or by the state. We also seldom hear discussions about whether a candidate for judicial appointment harbours views about abortion, corporal punishment or gay rights similar to the view held by the more reactionary NG Kerk dominees or the now-retired Pope.

Be that as it may, by involving politicians in the appointment of judges (about half the members of the JSC are members of the legislature) and by ensuring the appointment of judges that will, over time, make the judiciary look more like the general population in terms of race and gender (but also in terms of sexual orientation, class, rural representation, language and the like), I would argue that the Constitution provides political cover to judges to do their job.

It potentially also helps to prevent the appointment of judges whose views about the world and the role of law in regulating the world are completely out of kilter with the norms embodied in the Constitution and/or with the broad values of the majority of citizens. Of course, there is a potential tension between the norms embodied in the Constitution and the beliefs of many voters, who often harbour the most reactionary views on how to treat criminals or marginalised and vulnerable groups in society. Once appointed, judges will often try to navigate the waters between upholding the high principles of the Constitution (according to their own conscience) while pragmatically trying not to alienate the overwhelming majority of voters.

Nevertheless, I believe this political sifting of judicial nominees through the involvement of some politicians on the JSC can help to protect the judiciary from the kind of “radical” decisions that would render judges vulnerable to the kinds of populist attacks that David Cameron so shamefully indulged in.

The South African system of appointing judges recognises that there is a need to avoid the appointment of judges who would destroy the legitimacy of the judiciary by blatantly making decisions purely based on their party political commitments, while also accepting the reality that the personal judicial philosophy of a judge may well influence the individual judge’s interpretation and application of the Constitution.

This is why the JSC consists of both lawyers and judges and politicians and why the interviews with candidates for appointment are conducted in public. The Constitution recognises that broader political considerations will play a role in the appointment of judges, but attempts to constrain the baser instincts of the politicians involved in decisions about appointments to the bench by insisting on an open and transparent appointments process, by including lawyers and judges on the JSC and by insisting that the JSC always act rationally.

In my opinion this involvement of politicians in the JSC appointments process is therefore potentially a good thing. Not only does it help in the appointment of judges whose values are not completely anathema to the vast majority of voters, it also protects judges to the extent that politicians cannot say that they were selected by a process in which politicians had no say. If judges make decisions that politicians do not like, well, politicians are partly to blame for the appointment of those judges.

The involvement of politicians in the appointment of judges will not stop attacks on the judiciary, but it does provide some cover for judges who can point out that politicians had a large say in their appointment. Hopefully, as an Apartheid-era minister of justice once remarked, after judges are appointed many of them start believing that they were appointed on merit and then start thinking for themselves.

This does not mean that the JSC has always struck the correct balance in how it manages the interviewing process and how it selects candidates for appointment. For the JSC to work well, it is also important that the process through which they make decisions on appointment must be seen to be fair. At the very least, all candidates who are interviewed should be treated in more or less the same way when they are interviewed. Recently the JSC has failed in some respects in this task of acting in a fair manner to all candidates concerned.

If you happen to believe – like I do – that the Constitution is a document that should be interpreted to facilitate the economic and social transformation of society, the judicial philosophy and political commitments of some white male candidates, whose virtues are being extolled by some in the legal fraternity, must disqualify them from appointment. Others might disagree, but the disagreement would not be based purely on the so-called “merit” of the candidate, but would also be based on a fundamental disagreement about the desired judicial philosophy and political commitments and background of an ideal judge in post-Apartheid South Africa.

Because decisions about who to appoint as judges have political implications – also for the manner in which the Constitution will be interpreted and applied – it is perfectly legitimate to criticise the JSC for appointing a certain candidate and not appointing another candidate. It is also perfectly legitimate to promote the candidacy of one nominee and to criticise the candidacy of another.

Civil society, the legal profession and academia can play a far more robust role in engaging in this debate and informing us all about the qualities of candidates that put themselves forward. It’s worrying that we know so little about many of the judges who are appointed to various courts.

There is a danger that such debates could be hijacked by groups advancing narrow partisan political goals or by those who represent the special interests of large corporations. Although difficult because of the divided nature of the profession, I think the legal profession could play an important role to prevent this. This might allow for a more helpful debate on the suitability of an individual candidate that transcends the rather unhelpful and sometimes hysterical discussions on the so-called (but in fact imaginary) refusal to appoint white male candidates to the bench.

If a candidate has written several judgments in which he had questioned the wisdom of protecting women and gay men and lesbians from direct and indirect discrimination, I would not hesitate to argue that the candidate is not fit for appointment. But why does the legal profession not provide more detailed and thoughtful analysis of candidates and publicise this more effectively to enhance this kind of debate? If a nominee has shown through words and deeds that he or she has little sympathy for poor and vulnerable people and would not hesitate to order their eviction to render them homeless, I would similarly have no hesitation in criticising the nominee and arguing why his or her appointment would be unwise.

Of course, in a democracy people are going to differ about which judges are the best and embody the best values. Having informed debates about this, so it seems to me, is a rather healthy thing.

In my view, a candidate who holds views completely out of kilter with the values embodied in the Constitution as well as the stated economic policies of the governing party – does not possess the requisite “merit” to be appointed to the SCA. A candidate who lacks the wisdom and maturity to embrace the notion of diversity and difference – as the Constitutional Court did – similarly, in my opinion, lacks the merit, and should not be appointed as a judge.

Others may well disagree with me, and they may well champion candidates who are avid supporters of the Free Market Foundation or the bizarre fantasy that race does not matter in South Africa and should never be relevant in deciding constitutional questions. The problem is not that others would support such candidates – we will never all agree on what makes a judge suitable for appointment – but rather that they would claim their support is based entirely on the alleged “merit” of the candidate when it is at least partly based on other, more political, considerations. If you support a candidate for appointment because he or she will protect the status quo, by all means, do so. But don’t pretend your support is entirely based on the candidate’s supposed merit.

I understand that we may not all agree on the ideal normative value system that we believe the Constitution imposes on our legal system. But surely, informed debate – assisted by considered, detailed, analysis of candidates by NGOs, by academics and by the organised legal profession – will help the JSC to make better appointments to the bench. Over time the JSC will then be able to strike the right balance in the appointment of judges.

PS: This is an edited and shortened version of a speech delivered at a UCT Law Faculty alumni function in Johannesburg on 3 October 2013.

It is of utmost importance that the moral position of our post-Apartheid judges is rooted in the constitution and all that it upholds. This will ensure that adjudications are impartial, fair, and founded on valid justification. Such an approach, which draws a sharp contrast to the injustices of our past, will developed a system dedicated to fairness. Similarly, it will be profoundly interested in the critical analysis of all legislation, targeting unconstitutional errors in order to benefit the well-being of the public. This system, which persists in creating change, will empower and improve a wounded justice system. Similar attention must be turned towards the responsibility of the JSC to implement fair, thorough and transparent appointment of judges. A culture of justification coupled with a judiciary of activist judges and a well-balanced JSC, will not only create societal change but initiate continual growth. This will enrich our judicial system, empowering its level of competency and earning back the trust of a justifiably sceptical public.